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gov.uscourts.cacd.180451.274.0

gov.uscourts.cacd.180451.274.0

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Published by: eriqgardner on Dec 23, 2011
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MOTION FOR TERMINATING SANCTIONSCV05-8508 PSG (FMOX)
DANIEL M. PETROCELLI
(S.B. #97802)dpetrocelli@omm.com
JAMES M. PEARL
(S.B. #198481) jpearl@omm.com
BRIAN FINKELSTEIN
(S.B. #261000)brianfinkelstein@omm.com
O’MELVENY & MYERS LLP1999 Avenue of the Stars, 7th FloorLos Angeles, CA 90067-6035Telephone: (310) 553-6700Facsimile: (310) 246-6779Attorneys for DefendantsWARNER BROS. ENTERTAINMENT,INC. and JOHN LOGAN
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
AARON BENAY,
et al.
,Plaintiffs,v.WARNER BROS.ENTERTAINMENT, INC.,
et al.
,DefendantsCase No. CV05-8508 PSG (FMOx)
DEFENDANTS WARNER BROS.ENTERTAINMENT, INC. ANDJOHN LOGAN’S NOTICE OFMOTION AND MOTION FORTERMINATING AND OTHERSANCTIONS AGAINSTPLAINTIFFS AARON BENAY ANDMATTHEW BENAY
Hearing Date: March 12, 2012Time: 1:30 p.m.Place: Courtroom 880Judge: Hon. Philip S. Gutierrez
Case 2:05-cv-08508-PSG -FMO Document 274 Filed 12/21/11 Page 1 of 44 Page ID#:4385
 
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MOTION FOR TERMINATING SANCTIONSCV05-8508 PSG (FMOX)
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE THAT
on March 12, 2012
1
, at 1:30 p.m., or assoon thereafter as the matter may be heard, before the Honorable Philip S.Gutierrez, United State District Court Judge, in Courtroom 880 in the Edward R.Roybal Building, 255 East Temple Street, Los Angeles, California, 90012,defendants Warner Bros. Entertainment, Inc. (“Warner Bros.”) and John Logan (the“Moving Defendants”) will and hereby do move this Court, pursuant to the Court’sinherent authority to prevent abuses of the litigation process, Federal Rule of CivilProcedure 41(b), and Local Rules 11-9 and 83-7 for an order of sanctions againstplaintiffs Aaron Benay and Matthew Benay terminating this action with prejudiceand awarding attorneys’ fees and costs to defendants.The grounds for this Motion for Terminating and Other Sanctions AgainstPlaintiffs Aaron Benay and Matthew Benay are plaintiffs or their agents’manufacture and use of fabricated documents attached to the March 29, 2011anonymous letter; plaintiffs’ representations to the Court—including at hearings onApril 4, 2011 and June 13, 2011—that the documents were authentic and thatplaintiffs were not responsible for their creation or distribution; plaintiffs’knowingly false deposition testimony; plaintiffs’ refusal to withdraw the documentsafter being put on notice that they were false; and all such other and further groundsdisclosed in the accompanying papers.In the alternative, if terminating sanctions are not entered against plaintiffs,Moving Defendants will and hereby do move this Court for an order excluding thedocuments and the anonymous letter from being used as evidence in this litigation,
1
March 12, 2012 is the Court’s first available hearing date. The hearing fordefendants Warner Bros. Entertainment, Inc. and John Logan’s motion forsummary judgment (Docket No. 271) is currently noticed for February 6, 2012.Because both this motion and the summary judgment motion address overlappingsubject matter, Warner Bros. Entertainment, Inc. and Mr. Logan intend to seek anorder that both motions be heard concurrently on February 6.
Case 2:05-cv-08508-PSG -FMO Document 274 Filed 12/21/11 Page 2 of 44 Page ID#:4386
 
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- 2 -
MOTION FOR TERMINATING SANCTIONSCV05-8508 PSG (FMOX)
for such other relief disclosed in the accompanying papers, and/or for such otherrelief that the Court may see fit to grant.This motion concerns the fabrication of documents, portions of which werecut and pasted from genuine documents in the Court record by plaintiffs or theiragents. To assist the Court in understanding and assessing the evidence of suchfabrication, the Moving Defendants hereby request the Court set a specialevidentiary hearing, no longer than half a court day, for the purpose of presentinglive testimony and argument on this issue.This motion is based upon this notice of motion and motion, the attachedmemorandum of points and authorities, the declarations and other evidence filedconcurrently herewith, the pleadings and records on file in this action, and on suchother and further evidence as the Court may consider at or before the hearing. Thismotion is made following the conference of counsel pursuant to Local Rule 7-3 andJudge Gutierrez’s Standing Order Regarding Newly Assigned Cases ¶ 5(b) whichtook place on October 9, October 12, and October 27, 2011.Dated: December 21, 2011 O’MELVENY & MYERS LLPBy: /s/ Daniel M. PetrocelliDaniel M. PetrocelliAttorneys for Defendants WarnerBros. Entertainment, Inc. and JohnLogan
Case 2:05-cv-08508-PSG -FMO Document 274 Filed 12/21/11 Page 3 of 44 Page ID#:4387

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